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Or v. Edwards11/19/2004
nse; she was semiconscious, sleeping, or somnolent. When they moved a limb, she appeared in reaction to rouse herself and moan or cry. When still, there was no indication of pain. On the following day, she exhibited what evidently were signs of "decorticate posturing," defined as persistent flexion of the arm and extension of the leg on the other side, in other words, spasmodic movement of the arms and legs. This posturing reflects damage to the outer layer of the spinal cord usually caused by oxygen deficiency. Dr. Peccei thought the moaning and crying and grinding of teeth should not be considered part of the posturing, but she didn't know.
After CT scanning, Anmorian entered Ellison 3, the pediatric intensive care unit. Dr. Elizabeth Ann Catlin, then in charge of the unit, testified there was progressive neurologic impairment. On Sunday, the girl suffered a seizure. She required anticonvulsive medication and a breathing tube to the throat; finally, on Sunday night, she was put on a ventilator. She suffered brain death at 11:00 A.M. Monday, and life support was removed the following day. What brought her to her death, according to Dr. Catlin, was the lessening flow of oxygen or blood to the brain -- all stemming from strangulation in the criminal episode. Dr. Catlin spoke of consciousness as an imprecise term and of neurologic awareness as a rough approximation of consciousness.
In an effort to show awareness on the girl's part, counsel for the plaintiff asked the jury to look at places in the medical record (received in evidence in its entirety) that refer to particulars of the girl's condition. In our view, these items go no further than to bear out the doctors' testimony about the spasmodic moaning and crying and posturing. To avail the plaintiff, the conscious suffering of G. L. c. 229, § 6, must be demonstrated by cognizable proof beyond mere surmise. See Baldassare v. Crown Furniture Co., 349 Mass. 183, 195 (1965). Here the proof of awareness is null or, on any basis of comparison, not any more demonstrative than that appearing in decisions dismissing claims under § 6, e.g., Carr v. Arthur D. Little, Inc., 348 Mass. 469, 474-478 (1965). There is no sign here of actual expression by the victim (or response) that supported positive findings in some other cases. See Boutlier v. Malden, 226 Mass. 479, 488 (1917); Battany v. Wall, 232 Mass. 138, 140-141 (1919); Allison v. Sessa, 302 Mass. 302, 303-304 (1939); Campbell v. Leach, 352 Mass. 367, 373 (1967). Upon a reading of the medical record we agree with the trial judge that the girl lacked consciousness or awareness from beginning to end. If the record could conceivably be read otherwise under expert guidance, the plaintiff offered no expert testimony (the doctors testified as observers not experts).
Counsel suggests there may have been conscious suffering in the period before the child was found in apartment 3A. Suffice to say the suggestion fails as unsupported surmise.
We hold judgment n.o.v. was properly allowed as to conscious pain and suffering under § 6.
Amended judgment affirmed.
Order denying motion for new trial affirmed.
Page 1 2 3 4 5 6 7 8 9 Massachusetts Personal Injury Attorneys
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